Right to counsel

The Adult Maltreatment Custody Act provides a right to appointed counsel in proceedings to commit custody of a person to the state. Ark. Code Ann. § 9-20-116; see also Ark. Code Ann. § 9-20-109(d) (“The court shall immediately appoint the Arkansas Public Defender Commission to represent the maltreated adult if: (1) There is reasonable cause to believe the maltreated adult is indigent; or (2) The maltreated adult’s liberty interest is in jeopardy and the financial condition of the maltreated adult is undetermined.”).  Unlike in termination proceedings, this right is generally not waivable because an individual facing a proceeding questioning their mental health is unable to at the same time knowingly and voluntarily waive their rights.  Honor v. Yamuchi, 820 S.W.2d 267, 271 (Ark. 1991) (“To determine that long-term custody is appropriate because the individual lacks the capacity to comprehend impending dangers, finding at the same time there has been a knowing and intelligent waiver, is patently inconsistent.”).

The right to counsel also extends to appeals. See Adams v. Ark. Health and Hum. Servs., 375 Ark. 402, 405, 408 (Ark. 2009) (holding that this statutory right extends to appeals).  The court borrows from the criminal context, applying the Anders standard in appeals from commitment proceedings, which requires the attorney to show that no genuinely appealable issue exists before permitting the attorney to withdraw as counsel. Adams v. Ark. Health and Hum. Servs., 291 S.W.3d 172, 174, 176 (Ark. 2009) (adding that it would “defy logic” to deny counsel on appeal to “endangered” adults subject to long-term custody orders).